The saddest aspect of the current Sharia family tribunal debate in Ontario is that it is symptomatic of a continuing malady in Canadian politics that has now reached the point of corroding our most basic pillars of constitutionalism liberalism. Over the past twenty years national leaders have been content to replace effective action on the crucial political and distributive issues that confront us with little more than pandering to parochial particularities through pork-barrel vote-grabbing schemes. Now it seems that Ontario’s leaders are ready to succumb to this virus of statocratic mediocrity to the point where we may soon lose sight of what our democracy is all about.
Along with the supremacy of the people’s suffrage; the sovereignty of the liberty of the individual over any corporate or collective demands of the state and the independence of the judiciary, the separation of church and state is one of the pillars of liberal democracy. As James Madison put it over two hundred years ago, “The civil administration shall take no cognizance of religion.” Freedom of religion has never implied, and should never imply, the elevation of any aspect of religious sacrament to the level of secular right. It is not appropriate for the state to validate, encourage or finance faith-based estates. Ontario’s current debate leaves the door open to just that.
That opening will sow a whirlwind of exclusiveness and intolerance that will compromise the very consequence of this nation’s constitutional framework. All citizens have a right to the protection of equal and equitable consideration under one set of laws of universal application that reflect our common humanity. Nothing more, nothing less. Any prejudice to this principle in order to appeal to special interests will make the evocation of our noblest aspirations to tolerance and inclusion objects of dangerous derision. Instead of celebrating the great circumstance of our human commonalities – which should be the goal of a multicultural society - we will be imprisoned by the low limitation of narrow narcissisms.
The Quebec government has not demonstrated any inspiring profile in courage on matters of the public agenda. But on this issue, thanks to the initiative and determination of National Assembly member Fatima Houda-Pepin, Quebec quickly rejected Sharia consideration with a near unanimous vote of all parties. Ontario should take a lesson. Allowing any parallel system of law will not expand rights, it will contract them by the chipping away at the foundational principle of justice for all under equal law. We need political leadership with the courage to rectify the initially unjust inherent advantages granted to religious denominations, not add to those wrongs for the sake of political expediency.
The only role for the state in family law is strictly to interpret the “contract” between parties and the rights flowing from that. The basis of contract law as the fundamental construct for the interpretation of relations between citizens has been primordial since Magna Carta established a social contract between governors and governed. The state’s appropriate role is to protect people from incitement and violence against their personal practices, so long as those practices do not violate the rights of others. Any demands by citizens to bring faith-based estates, or tribunals, to an equal level in public law should be considered illegitimate in a free society.
The siren calls for pseudo-religious rights to be insinuated into, or to fall under the protection of, the public corpus, are being made under the thinly-veiled tutelage of forces inimical to all traditions of pluralism. Neither adherence to canon law, nor fidelity to cultural origins, should be used as anvils upon which to beat the Charter of Rights into the contorted dimensions these various groups demand.
The impetus for Sharia courts began in 2003 when Syed Mumtaz Ali, a lawyer and President of the Canadian Society of Muslims, created the Islamic Institute of Civil Justice. But, as David Ouellette has reported, Mumtaz Ali has been advocating goals that reach far beyond the establishment of a mere Islamic arbitration and mediation process.
Ouellette points to a 1995 interview posted on the Canadian Society of Muslims website where Mumtaz Ali declared: “Do you want to govern yourself by the personal law of your own religion, or do you prefer governance by secular Canadian family law? If you choose the latter, then you cannot claim that you believe in Islam as a religion and a complete code of actualized life by a Prophet who you believe to be a mercy to all”.
Mumtaz Ali is unambiguous about his objectives. Islam provides a whole set of laws to which he, as all Islamists, expects true Muslims to strictly abide. Ouellette has also brought to light an article Mumtaz Ali wrote entitled “The Salman Rushdie Issue: A Synthesis of the Islamic Law of Blasphemy/Apostasy in the Context of Canadian Multiculturalism” in which he argues that the Canadian Charter of Rights and Freedoms should make room for the punishment of Muslim apostates in Canada, and that failing to do so would be “a flagrant breach of equality rights because the preamble to the Charter of Rights and Freedoms acknowledges the “supremacy of god and the rule of law”. To Mumtaz Ali it seems to follow that Sharia, as divine law, is compatible with the Charter. Moreover, because the Charter commits Canada and its institutions to the preservation of its multicultural heritage, Mumtaz Ali concludes that the punishment of would-be Muslim apostates should be enshrined as a right of the Muslim community.
Pierre Elliott Trudeau’s purpose with the Charter was to enshrine the supremacy of the individual over any forms of discrimination by the state or demands of particularity by a collective, and to protect that supremacy with equal justice for all. Too often this purpose has been twisted by “progressives” who insist that it created new classes of group rights. It was never meant to do that.
State submission to special interests will do nothing more than heighten irrational feelings of superiority and strengthen unreasonable commitments to those particularities. Rather than encouraging social peace, they will incite further irritation between competing stakeholders as our legal system struggles to accommodate the inevitable explosions of legislation, regulation and exception.
That every individual has personal, natural, and moral rights to submit to canonical doctrine; undertake religious education or indulge in nonconformist lifestyles is not in question. But on no account should we allow their demands for material support, whether legal or financial, to prevail upon the patrimony of civil society by forcing that society to legitimize separateness and exclusivity in its public law. Catering to exclusive-and exclusivist-communities of interest is an aberration from, and an affront to, all that is best in our dynamic, and continuing, experiments in social democracy.
As Thomas D’Arcy McGee said in 1865, “This Northern Dominion can grow—under one flag and one set of laws—into one great nation. It cannot achieve this goal--under that same flag and under those same laws—by submitting to a thousand squabbling sets of interests.” Only with this in mind can we as Canadians ever vindicate the possibilities of our own capacities.